Citation Nr: 1718164
Decision Date: 05/24/17 Archive Date: 06/05/17
DOCKET NO. 09-03 927 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a left upper extremity disability, claimed as left ulnar neuropathy.
2. Entitlement to a separate, compensable rating for bilateral trapezius and shoulder pain.
3. Entitlement to an initial disability rating in excess of 10 percent for tension headaches (herein headaches) prior to July 11, 2012 and in excess of 30 percent thereafter.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
W. R. Stephens, Associate Counsel
INTRODUCTION
The Veteran had active duty training from June 1994 to May 1995, with additional service in the Reserves.
These matters comes before the Board of Veterans' Appeals (Board) on appeal from March 2008 (left upper extremity disability claim) and December 2012 (other claims) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
The Board previously remanded the issue of entitlement to service connection for left ulnar neuropathy in October 2012.
The Veteran testified at an August 2014 Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record.
In May 2015, the Board remanded the issues of entitlement to service connection for a left upper extremity disability and entitlement to a separate, compensable rating for bilateral trapezius and shoulder pain. The Board also granted a 30 percent disability rating for service-connected headaches from July 11, 2012. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2016 Order, the Court remanded the case to the Board for action consistent with a Joint Motion for Partial Remand (JMPR).
Subsequent to the February 2016 JMPR, the Board remanded all three of these issues in June 2016 for further evidentiary development.
FINDINGS OF FACT
1. A left upper extremity disorder did not manifest in service and is unrelated to service or ACDUTRA. Arthritis or an organic disease of the nervous system (peripheral nerve disorder) was not manifest within one year of separation
2. A left upper extremity disorder is not caused or aggravated by a service-connected disease or injury.
3. Bilateral trapezius pain is contemplated by the schedular criteria in the evaluation of the Veteran's service-connected cervical spine disability and does not warrant a separate evaluation. There are no associated neurological abnormalities.
4. Bilateral shoulder pain is unrelated to the Veteran's service-connected cervical condition, and is instead related to a nonservice-connected condition, and as a result, does not warrant a separate evaluation.
5. For the period prior to July 11, 2012, the Veteran's tension headaches most closely approximate prostrating attacks occurring on average once every two months over the last several months; and are not characterized by prostrating attacks occurring on average once a month over the last several months.
6. For the period from July 11, 2012, the Veteran's tension headaches most closely approximate prostrating attacks occurring on average once a month over the last several months; and are not characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.
CONCLUSIONS OF LAW
1. A left upper extremity disorder was not incurred in or aggravated by service and an organic disease of the nervous system or arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2016).
2. A left upper extremity disorder is not proximately due to, the result of, or aggravated by a service connected disease or injury. 38 C.F.R. §§ 3.102, 3.310 (2016).
3. A separate compensable evaluation for bilateral trapezius or shoulder pain is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 5237 (2016).
4. The criteria for an initial rating in excess of 10 percent for tension headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8100 (2016).
5. The criteria for a rating in excess of 30 percent from July 11, 2012, for tension headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8100 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Compliance with Stegall
As noted in the Introduction, the Board most recently remanded these claims in June 2016. The Board directed the RO to: (1) request additional information from the Veteran regarding the impact of his service-connected headaches on his ability to work; (2) obtain all outstanding VA treatment records after November 2015; (3) contact the Veteran to request additional private treatment records; (4) obtain appropriate medical opinions from a VA examiner regarding the Veteran's service connection claim for a left upper extremity disability and entitlement to a separate compensable evaluation for bilateral trapezius and shoulder pain; and (5) readjudicate the issues.
VA sent an August 2016 letter complying with directives (1) and (3). Updated VA treatment records were obtained and associated with the record. August 2016 VA medical opinions and January 2017 addendum medical opinions were issued pursuant to the Board's directive. The issues were readjudicated in a February 2017 Supplemental Statement of the Case (SSOC). As a result of these steps taken, the Board finds that there has been compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998).
II. VA's Duty to Notify and Assist
VA's duty to notify was satisfied by June 2007 and November 2011 letters, along with additional letters during the period on appeal. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c). In assisting the claimant in the procurement of service and other relevant records, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, and will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency.
VA has satisfied its duty to seek relevant records. VA has obtained and associated available service treatment records, identified private treatment records, and VA treatment records with the file. The record does not indicate and the Veteran has not notified VA that additional VA medical records, private medical records, or relevant social security medical records exist.
The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required). When VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinion must be adequately supported and explained. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).
The Veteran was most recently afforded an August 2016 VA examination for his left upper extremity service connection and entitlement to a separate compensable evaluation claims. January 2017 addendum medical opinions were also issued. The Veteran has not argued, and the record does not reflect, that the August 2016 examination or January 2017 addendum opinions are inadequate. 38 C.F.R. § 3.159 (c)(4), 4.2; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiners considered the Veteran's relevant medical history and lay statements, and provided well-reasoned and adequately supported opinions.
With respect to the Veteran's headache condition, the Board notes that the Veteran has not been afforded a VA examination since the July 2012 Disability Benefits Questionnaire submitted by the Veteran. However, the Veteran has not specifically stated that his condition has worsened since that examination. Furthermore, the Veteran did not respond to VA's August 2016 letter requesting additional information regarding the severity of his headaches. As a result, the Board finds the medical evidence of record to be sufficient to evaluate the Veteran's headache disability.
During the August 2014 Board hearing, the undersigned Veterans Law Judge clarified the issues on appeal, identified potential evidentiary defects, and clarified the type of evidence that would support the Veteran's claims. The VLJ left the file open for 60 days to provide an opportunity to supplement the record. The actions of the Veterans Law Judge supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103.
The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims.
Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.
III. Service Connection
In his original May 2007 claim, the Veteran filed for service connection for "left ulnar neuropathy secondary to service-connected cervical condition." In a subsequent November 2007 statement, the Veteran requested consideration of direct service connection for left ulnar neuropathy as a result of an in-service fall. During the course of the appeal, the Veteran has been diagnosed with additional disabilities of the left upper extremity. The Board will address each relevant condition with respect to both direct and secondary theories of service connection.
Direct Service Connection
Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service).
To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
An alternative method of establishing the second and third elements of service connection for those disabilities identified as "chronic" under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In addition, certain chronic disabilities are presumed to have been incurred or aggravated in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). The Veteran's arthritis and disorders involving the peripheral nerves are considered "chronic" under 38 C.F.R. § 3.309 (a). As a result, these provisions are applicable with respect to these conditions.
In the context of Reserve or National Guard service, the term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101 (21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C.A. §§ 101 (24), 106, 1110, 1131. In other words, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service.
At the Veteran's original September 2007 VA examination, he was diagnosed with left ulnar neuropathy. In a March 2013 Disability Benefits Questionnaire (DBQ) submitted by the Veteran, the private physician diagnosed rotator cuff tendinopathy and lateral epicondylitis of the left arm. At a July 2015 VA examination, the Veteran was diagnosed with degenerative arthritis of the left shoulder, and in the medical opinion provided, the examiner also discussed bicipital tendonitis.
Service treatment records document a complaint of lower back pain for six months, stemming from a fall down a flight of stairs at Fort Sill. There are continued complaints of low back pain, but no mention of relevant complaints, treatment, manifestations, or diagnoses regarding the left upper extremity. There is no separation examination of record, however a periodic examination dated June 1999 reveals normal upper extremities, including strength and range of motion, upon clinical evaluation.
The November 2013 VA examiner determined that the Veteran's left ulnar neuropathy was less likely than not caused by or a result of his military service, to include the Veteran's documented fall. The examiner cited the absence of relevant documentation in service treatment records and the Veteran's first relevant complaint appearing in 2005 upon diagnosis.
The July 2015 VA examiner concluded that the Veteran's left shoulder bicipital tendonitis is less likely than not related to his military service. The examiner cites the lack of documentation of any relevant complaint, treatment, manifestation, or diagnosis in service treatment records and the Veteran's self-reported history of pain beginning in 2005. The examiner noted that the condition was bilateral, and as a result, was likely related to mild degenerative changes of the joint, which are related to the natural wear and tear of the joint.
The August 2016 VA examiner concluded that it was less likely than not that the Veteran's left lateral epicondylitis had its clinical onset during active service or is related to any in-service incurrence, including the Veteran's fall down the stairs. The examiner again cited service treatment records and noted that the current condition was diagnosed several years after service.
The January 2017 VA examiner similarly concluded that the Veteran's left lateral epicondylitis was less likely than not incurred in or caused by the Veteran's military service. The examiner also opined that it was less likely than not that the Veteran's shoulder tendonitis with degenerative arthritis was less likely than not related to his military service. The examiner cited service treatment records and the lack of medical evidence of a complaint of a shoulder condition until July 2015. The examiner concluded that the shoulder tendonitis was likely related to the mild shoulder degenerative arthritis of the AC joint, which was most likely related to the natural aging progress as the condition was in the bilateral joints. The examiner further stated that she agreed with the opinion of the August 2016 VA examiner.
The March 2013 and September 2016 Shoulder and Arm DBQ's completed by a private physician and submitted by the Veteran do not provide medical opinions regarding the etiology of the Veteran's left upper extremity disorders.
In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997).
The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez, supra. In this case, the Board accepts the November 2013, July 2016, August 2016, and January 2017 VA examiners' opinions that the Veteran's variously diagnosed left upper extremity disabilities are less likely than not related to his military service, to include his in-service fall, as highly probative medical evidence on this point. The Board notes that the examiners rendered their opinions after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens, 11 Vet. App. at 383; Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician's opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence).
The Board has also considered the lay statements of record, to include the Veteran's assertion that his left upper extremity disorders stem from his in-service fall. Here, the Veteran is competent to report his observations and relate what he was told by medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Of note, the Veteran has not indicated that a medical professional provided him with a diagnosis during service or immediately thereafter, and he has not asserted that a medical professional has told him his condition is directly related to service.
To the extent that the Veteran has alleged a continuity of symptoms since service, the Veteran's lay evidence of continuity is far less probative than the opinions of the VA professionals, as the VA medical opinions are far more detailed and reasoned; thus warranting a greater probative value. In reaching this finding, the Board also looks to the lack of any relevant treatment, complaints, manifestation, or diagnosis in service treatment records and the June 1999 periodic examination in the reserves revealing normal upper extremities, approximately four years after his active duty training.
The medical evidence of record is afforded greater probative value than the more general lay assertions of the Veteran, even assuming those lay assertions were competent. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Jandreau, supra. ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").
In sum, there is no reliable evidence linking the Veteran's various left upper extremity disorders directly to service. The contemporaneous records establish that the left upper extremities were normal after his period of ACDUTRA, there were no manifestations of a left upper extremity disorder within one year of separation, and the variously diagnosed left upper extremity disorders were first manifest many years after separation. We find the contemporaneous records to be far more probative and credible than the Veteran's report of continuity and treatment.
Here, a left upper extremity disorder was not "noted" during service within the meaning of section 3.303(b). While the Board notes the Veteran's reported history of the in-service fall, the Board finds that the service treatment records do not show a combination of left upper extremity manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Furthermore, the evidence does not establish that a left upper extremity disorder was manifest to a compensable degree with one year of separation. 38 C.F.R. §§ 3.307; 3.309.
The evidence of record does not show that a left upper extremity disorder was manifest until several years after service. Furthermore, there is no showing of continuity. The Veteran was not shown to have a left upper extremity disorder or any relevant disorder in service and did not have characteristic manifestations of such a disorder until many years after discharge.
In essence, the evidence establishes that the Veteran had a normal left upper extremity during service and at a periodic examination several years after his ACDUTRA, and experienced the onset of left upper extremity symptoms many years after service. The Board finds the contemporaneous in-service and post-service treatment records are entitled to greater probative weight and credibility than the lay statements of the Veteran and the self-reported history continuity.
The more probative evidence establishes that he did not have a left upper extremity disorder during service or within one year of separation. Furthermore, the evidence establishes that the remote onset of the condition is unrelated to service.
Secondary Service Connection
As previously noted, the Veteran asserts that his left upper extremity disorders are secondary to his service-connected cervical spine condition.
In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and, (3) nexus evidence establishing a connection between the service-connected disease or injury and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998).
Service connection is warranted for "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310 (a). Secondary service connection is also warranted for "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." 38 C.F.R. § 3.310 (b).
Any additional impairment resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995).
The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected.
In reaching this determination as to aggravation of a nonservice-connected disorder, consideration is required as to what the competent evidence establishes as the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected disability), in comparison to the medical evidence establishing the current level of severity of the nonservice-connected disease or injury.
The September 2007 VA examiner opined that the Veteran's left ulnar neuropathy was most likely "of entrapment nature" and not related to his service-connected cervical spine disability. The examiner explained that the two disorders have "different pathophysiological mechanisms and anatomically distantly separated." Notably, the examiner did not address whether the cervical spine condition aggravated the left ulnar neuropathy.
The November 2013 VA examiner concluded that the Veteran's left ulnar neuropathy is not caused by or aggravated by the service-connected cervical disability. The examiner explained that ulnar neuropathy is a "condition of peripheral nerve (distal nerve) and [the] cervical spine disability affect[s the] central nerve. It is worth to mention that ulnar neuropathy is not related anatomically nor pathophysiological to cervical spine disability."
The August 2016 VA examiner concluded that it was less likely than not that the Veteran's left lateral epicondylitis, left bicipital tendonitis or arthritis of the left shoulder is aggravated by the Veteran's service connected cervical strain with bilateral trapezius and shoulder pain. The examiner explained that left lateral epicondylitis and left bicipital tendonitis are conditions with "different pathophysiological mechanism and anatomically distantly separated from service-connected cervical strain." The examiner also concluded that it was likely that bilateral arthritis of the shoulders was age related.
The August 2016 VA examiner also concluded that it was less likely than not that the Veteran's left lateral epicondylitis, left bicipital tendonitis or arthritis of the left shoulder is due to or caused by the Veteran's service connected cervical strain with bilateral trapezius and shoulder pain. The examiner's rationale cited the "distinctly separate anatomical location" of the disorders and the cervical spine and the inability of the examiner to locate any peer-reviewed medical literature that would "support the concept" that the Veteran's service-connected cervical spine disability would aggravate any of the diagnosed left upper extremity disorders. The examiner further noted that "although the shoulder is interconnected, there is no etiological correlation between" the left lateral epicondylitis, left bicipital tendonitis, or arthritis of the left shoulder and the service-connected cervical spine disorder. The disorders are considered distinct and "many people may develop degenerative change of the shoulders as part of [the] aging process, having no correlation with altered biomechanical forces."
The January 2017 VA examiner agreed with the August 2016 examiner that the Veteran's left lateral epicondylitis, left bicipital tendonitis, or arthritis of the left shoulder are less likely than not caused by or the result of the Veteran's service-connected cervical spine disability. The January 2017 also agreed that the Veteran's left upper extremity disorders are not aggravated by the service-connected cervical spine disability. The examiner agreed with the rationale of the August 2016 examiner for both opinions. The examiner further stated that "it is important to mention that the current left shoulder trapezius myositis is part and parcel of the already service-connected cervical strain."
The Board again acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington, supra; Buchanan, supra; Jandreau, supra. However, as a layperson, it is not shown that the Veteran possesses the medical expertise to provide a medical opinion linking his diagnosed left upper extremity disorders to his service-connected cervical spine disorder. The only medical opinions of record addressing the claimed relationship are negative. No competent medical opinions linking his left upper extremity disorders and cervical spine have been presented. The VA examiners considered the Veteran's lay assertions, but ultimately found that the Veteran's current left upper extremity disorders were not caused by or aggravated by his service-connected cervical spine or any other service-connected disability. The Board finds that the Veteran's lay statements are outweighed by the VA examiners' medical opinions as they were based on consideration of the Veteran's contentions, reviews of medical records, and medical expertise.
The Board finds that the preponderance of the evidence is against a finding that the Veteran's currently diagnosed left upper extremity disorders are directly related to service, or in the alternative, secondary to a service-connected cervical spine or other service-connected disability, and the claim must be denied.
IV. Separate Compensable Evaluation for Bilateral Trapezius and Shoulder Pain
Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1.
In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1(2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991).
Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
The Veteran is currently service-connected for cervical strain with bilateral trapezius and shoulder pain, with a 20 percent evaluation under Diagnostic Code 5237. 38 C.F.R. § 4.71a. In an August 2011 claim, the Veteran requested service connection for bilateral trapezius and shoulder pain as secondary to the service-connected cervical spine. The Veteran has since requested a separate compensable evaluation for both claimed disorders. The Board will address bilateral trapezius and shoulder pain from both an increased evaluation and service connection perspective.
With respect to a separate compensable evaluation for bilateral trapezius and shoulder pain from an increased rating perspective, the Board notes that the General Rating Formula for Diseases and Injuries of the Spine, under which Diagnostic Code 5237 is evaluated, begins by stating: "With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease."
Note (1) of the General Rating Formula notes that any associated objective neurological abnormality should be evaluated separately.
A November 2011 VA examiner opined that the Veteran's bilateral trapezius and shoulder pain are at least as likely as not proximately due to the service-connected cervical strain. The rationale provided was that "the trapezius muscles are the ones commonly involved in conditions of muscle strain of the neck."
The Veteran submitted a December 2011 statement from a private physician stating that the Veteran has "severe myositis of his trapezius" which is "responsible for most of his symptoms." The examiner noted that symptoms included cervical pain, bilateral shoulder stiffness, and upper extremity "irradiation" of pain.
The July 2015 VA examiner noted that the bilateral shoulder pain and function limitation was at least as likely as not related to mild degenerative changes of the joint, which are related to natural wear and tear, and not the Veteran's service-connected cervical disorder.
Pursuant to the Board's June 2016 Remand directives, the August 2016 and January 2017 examiners provided opinions as to whether symptoms associated with the service-connected cervical strain resulted in functional impairment beyond the cervical spine.
The August 2016 examiner explained that the main symptom was pain, and that the actual service-connected condition would not cause any functional impairment beyond the cervical spine. The examiner cited the July 2015 opinion and restated that the Veteran's limitation of motion in both shoulder is due to nonservice-connected mild bilateral shoulder degenerative joint disease. The examiner noted that it is well-stated in medical literature the shoulder osteoarthritis, particularly bilateral, is due to the normal aging process of patients older than 40 years old. The examiner further stated that "pain is a subjective complaint which is very difficult to be disassociated from service connected condition and non-service connected bilateral shoulder degenerative joint disease."
The January 2017 VA examiner stated that "the symptoms of the cervical spine are the trapezius pain with limited [range of motion] of the neck in the case of the bilateral shoulder decrease[d] range of motion is more likely related to the degenerative changes" which are nonservice-connected. Referencing the December 2011 private opinion, the VA examiner noted that the private examination found "no shoulder condition with full range of motion." The examiner elaborated that it "is well known that if you have an exacerbation of pain in an accessory muscle of a joint it can cause some degree of stiffness but it is considered part and parcel of the SC condition and not an additional shoulder joint condition."
Consideration of the medical evidence does not show that a separate evaluation for either bilateral trapezius or shoulder pain is warranted in this case. The medical evidence of record clearly shows, to include the December 2011 private opinion, that the Veteran's bilateral trapezius pain is a condition which is associated with his cervical spine disability. However, it is also evident that any functional limitation resulting from bilateral trapezius pain is limited to functional impairment of the cervical spine, functional impairment that is clearly accounted for under the General Rating Formula for Diseases and Injuries of the Spine. To assess a separate compensable evaluation for the trapezius pain would amount to pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
Secondly, there is no evidence of clear and distinct disabilities of the bilateral trapezius or shoulders for which service connection on a secondary basis is warranted. The November 2011 VA opinion referencing a secondary connection to the cervical spine is limited to the trapezius pain, which as described, is accounted for in the current 20 percent disability evaluation for the cervical spine due to functional limitation of motion. Additional medical evidence of record makes it clear that the Veteran's subjective shoulder pain is not related to his service-connected cervical spine disability, but rather the result of nonservice-connected degenerative changes of the bilateral shoulders, the result of aging.
The Board again acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington, supra; Buchanan, supra; Jandreau, supra. However, as a layperson, it is not shown that the Veteran possesses the medical expertise to provide a medical opinion linking his diagnosed bilateral shoulder disorders to his service-connected cervical spine disorder. The only medical opinions of record addressing the claimed relationship are negative. No competent medical opinions linking his bilateral shoulder disorders and cervical spine have been presented. The VA examiners considered the Veteran's lay assertions, but ultimately found that the Veteran's current bilateral shoulder arthritis was not caused by or aggravated by his service-connected cervical spine or any other service-connected disability. The Board finds that the Veteran's lay statements are outweighed by the VA examiners' medical opinions as they were based on consideration of the Veteran's contentions, reviews of medical records, and medical expertise.
The Board finds that the preponderance of the evidence is against a finding that the Veteran's currently diagnosed bilateral shoulder arthritis is directly related to service, or in the alternative, secondary to a service-connected cervical spine or other service-connected disability, and the claim must be denied.
V. Increased Evaluation for Headaches
The Veteran's service-connected tension headaches are evaluated as 10 percent disabling from August 3, 2011, and as 30 percent disabling from July 11, 2012 pursuant to Diagnostic Code 8100. 38 C.F.R. § 4.124a, Diagnostic Code 8100.
A 10 percent disability evaluation is assigned where there are characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent disability evaluation is assigned where there are characteristic prostrating attacks occurring on average once a month over the last several months. For the schedular maximum 50 percent disability evaluation to be warranted, there must be migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100.
The Board notes that the Rating Schedule does not define "prostrating." "Prostration" has been defined as "complete physical or mental exhaustion." Merriam-Webster's New Collegiate Dictionary 999 (11th ed. 2007). "Prostration" has also been defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1534 (32nd ed. 2012). According to Stedman's Medical Dictionary, 27th Edition (2000), p. 1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." See Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013) (the Board adopts the Court's definition as its own).
Additionally, the phrase "productive of severe economic adaptability" has not been clearly defined by regulations or by case law. The United States Court of Appeals for Veterans Claims (Court) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, headaches need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the headaches must be, at minimum, capable of producing "severe" economic inadaptability.
A November 2011 VA examination report contains the Veteran's report of experiencing headaches three times a week. He denied non-headache symptoms such as nausea, vomiting, and sensitivity to light or sound. The examiner reported that there are no characteristic prostrating attacks, but noted that the Veteran has to leave work when the headaches are severe. He also reported that the Veteran's headache pain worsens with activity.
In July 2012, the Veteran reported that his headaches were increasing in severity and frequency. He is competent to give evidence about what he observes or experiences. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Board finds that his reported symptoms are credible. See Buchanan, supra.
On file is a July 2012 VA Headaches Disability Benefits Questionnaire completed by a physician that shows that the Veteran has no prostrating migraine attacks and that the duration of head pain is less than one day. However, it also shows that he has very frequent prostrating and prolonged attacks of non-migraine headache pain more than once a month. He was further shown to have non headache symptoms of sensitivity to light and sound. With respect to functional impact on the Veteran's ability to work, the examiner stated that the Veteran usually needs to take rest period that are not scheduled on his job, and when severe, he must be absent from work.
At the Veteran's August 2014 Board hearing, he testified that he suffered from constant headaches, usually occipital headaches, emanating from the back of the head and neck area. He reported taking Tramadol and over-the-counter medications for pain. He sometimes took time off from his job. He reported that he was currently teleworking, which has helped as he is able to rest periodically during the day. When the pain is worse, it is usually in the afternoon, which is when he takes time off.
At a February 2014 primary care appointment, the Veteran reported increasing frequency of headaches, but denied phono or photophobia, and nausea. At a February 2015 primary care follow-up note, the Veteran reported that his tension headaches were exacerbated due to work issues and the recent unexpected death of his mother-in-law.
Pursuant to the Board's June 2016 Remand, the Veteran was requested to provide additional evidence regarding the economic impact of his headache disability. The Veteran did not respond. It is also of note, that the Veteran has not asserted that his headache condition has worsened in severity since the July 2012 DBQ of record.
Based on the evidence of record, the Board finds that the preponderance of the evidence is against a finding that an initial rating in excess of 10 percent or an increased rating in excess of 30 percent from July 11, 2012 is warranted.
With respect to the initial evaluation, there is no objective or subjective evidence of characteristic prostrating attacks occurring on an average of once a month. The November 2011 VA examination documented no characteristic prostrating attacks.
With respect to the current 30 percent evaluation, the Board acknowledges that the Veteran's headaches have at times affected his ability to work. Specifically, the Veteran testified at his August 2014 Board hearing that he worked from home and sometimes needed to take unexpected breaks from work due to his headaches, requiring him to rest. The July 2012 DBQ also noted impact with his current employment, and when the headaches were severe, they required time off. While there is certainly some impact on the Veteran's work, there is no indication that there is "severe economic inadaptability." In reaching this finding, the Board notes that at the Veteran's August 2014 Board hearing he testified to being able to work at home and as a result, take breaks as needed in order to accommodate his headache disability. The Veteran indicated at his hearing that he was still able to meet his performance standards and there is no indication that the Veteran does not have sufficient sick leave to ensure the ability to take occasional time off from work. The Veteran is able to not only maintain his employment, but in accordance to his own testimony, is able to meet the performance expectations of his job with occasional time off, usually in the afternoons. In addition, the Veteran did not submit additional evidence in response to the Board's August 2016 request to provide further insight into any economic effect that the Veteran's headaches may have.
In reaching this finding, the Board acknowledges that the Veteran is competent to testify to such lay observable symptomatology, and there is no evidence that these statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of his headaches during this appeal. However, the Veteran has not provided statements supporting "severe economic inadaptability" consistent with a 50 percent evaluation.
Based on the lay and medical evidence of record, the Board finds that the Veteran's headaches do not more nearly approximate the level of severity contemplated by an initial rating in excess of 10 percent, or a rating in excess of 30 percent from July 11, 2012. At no point during the either period on appeal has the evidence shown an increased rating is warranted.
All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased initial rating in excess of 10 percent, or an increased rating in excess of 30 percent from July 11, 2012, for the Veteran's service-connected headaches. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.
Extraschedular Evaluation
Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id.
The first Thun element is not satisfied here. The Veteran's reported symptoms include pain, characteristic prostrating attacks, the frequency of pain, and sensitivity to light. These signs and symptoms, and their resulting impairment, are specifically contemplated by the rating schedule as part of the rating schedule for miscellaneous diseases, migraine. See 38 C.F.R. § 4.124a, Diagnostic Code 8100.
The Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. While some of the Veteran's symptoms are not directly contemplated by the rating criteria, they are inherently contemplated by the criteria. In short, there is nothing exceptional or unusual about the Veteran's headaches because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, referral for extraschedular consideration is not warranted.
Finally, a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). The Veteran has not alleged that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability
ORDER
Entitlement to service connection for a left upper extremity disability, claimed as left ulnar neuropathy is denied.
Entitlement to a separate, compensable rating for bilateral trapezius and shoulder pain is denied.
Entitlement to an initial disability rating in excess of 10 percent for tension headaches (herein headaches) prior to July 11, 2012 and in excess of 30 percent thereafter is denied.
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H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs